The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Recovering your children

What happens if your ex won't return the kids?

Sometimes people can be silly and fail to return the kids after spending time with them. There are few things more stressful than this, but thankfully the law provides a pathway for how to deal with such a situation.

The appropriate pathway is what is known as a "recovery order". The court can make an order that the children be "recovered" from one parent and returned to the other. The court does not implement the recovery order, but rather that order authorises the Federal Police to serve the order and collect the child.

If you have current court proceedings on foot you can make an application before the judge in your matter for a recovery order. If you have a court order, but the proceedings are finished, you are able to make a fresh application to the court for the recovery order.

Sometimes these situations will happen when there are no orders in place. Maybe there has just been a verbal agreement or perhaps a written parenting plan. In those cases, you will need to be able to convince the court that there should be an interim order for the child to live with you (usually because they have been doing so) before the court will make a recovery order.

Is a recovery order really necessary for your situation?

Before rushing off and getting a recovery order it is sensible to see if the situation can be resolved by agreement. In my experience, setting a deadline "you are in breach of the orders, unless you have the children back by 9.00am tomorrow morning I will have to take the matter to court" often is enough for common sense to prevail and the children returned.

Another good option is if there is a mutual friend or a family member that gets along with both of you who could assist both of you reaching an agreement.

Often, when faced with such a situation well meaning friends and family will think Victoria Police will be able to assist. Unfortunately, the police do not have any powers to do so but if there are any child safety concerns or family violence it is worth speaking with the police as family violence orders may be required.

If you need to apply for a recovery order, what happens?

When your ex fails to return a child to you and you cannot recover them yourself, make sure you seek legal advice from an experienced family lawyer who can assist you ensuring you deal with that emotionally difficult situation in the best way for your circumstances.

The court will require that you file an application and an affidavit. The application sets out the orders you seek, the affidavit is your evidence setting out why those orders need to be made.

Obviously, those documents need to be produced quickly so it is a good idea if you can prepare some notes on the relevant background. I find it most useful to prepare those notes as a chronology—setting out in date order the relevant facts.

It is also worth remembering that like all applications concerning children, the court has to make their decision based on the "paramount" principal of "what is in the child's best interests". Therefore your affidavit should focus on why a recovery order is in the best interests of the children.

As it is an interim application the affidavit can include hearsay evidence (evidence of what a 3rd person said) as long as you identify the person.

An urgent hearing date will then be arranged with the court. Often that involves the court staff forming their own opinion as to how urgent is the matter. This another reason why it is important that your affidavit is carefully drafted to present your matter clearly.

When the matter is listed for hearing before the court the judge (or magistrate if it is in the state magistrates court) will read the court documents and hear submissions from your lawyer. Sometimes they may require you to give evidence from the witness box to confirm or expand what was in your court documents.

If the court is satisfied there is a need for a recovery order they will make the order and adjourn your application to a specific date so that the matter can be reviewed once the recovery order has been executed.

The court then provides the order to the family law unit of the Federal Police. Your lawyer will assist you completing a summary of other background information the police require to assist them in locating the child. This will include providing lists of addresses and phone numbers the other party may be in touch with and recent photos.

The other important factor to keep in mind at this time is that the police will want to be able to hand the child back to you ASAP. This may mean that you need to travel to where the child is "recovered" so making arrangements so you can travel is useful.

I've just clicked over 21 years since I commenced my career in family law. In that time I have only had 2 cases where the recovery order did not see the child located and returned within 24 hours. Most times the whereabouts of the child is known and the effect of the recovery order is giving power for the child to be returned.

In some (thankfully rare) cases it may prove difficult for the Federal Police to locate the child. On these situations the parent may need to go back to the court seeking further orders such as a publication order (which allows publication in the media of details of the missing child, something that is otherwise prohibited by the Family Law Act). Another tool used is a location order which authorises specific entities like Centrelink or banks to release to police and the court information they have that may assist the location of the child.

This discussion is relevant when the child remains within Australia. If the child is taken overseas or is outside of australia when instead of being returned, it's a whole different kettle of fish governed by a combination of Australian and International Law.

All family lawyers at OFRM are experienced in matters regarding recovery orders.